BATON ROUGE – Proposed legislation currently in the state House that would allow prior acts of domestic abuse, sexual assault and other offenses to be admissible in civil cases also includes provisions for criminal prosecution, an attorney who has testified before the Louisiana Senate about a similar bill, said during a recent interview.

"The original version of Senate Bill 162 proposed to enact two new articles into the Louisiana Evidence Code -- one for civil cases involving domestic violence and cruelty to juveniles, and another for criminal prosecutions of those kinds," King Alexander, Louisiana Association of Criminal Defense Lawyers (LACDL) District 3 director, said in an email interview with the Louisiana Record. "For that reason, on March 16 the full Legislative Committee of LACDL flagged it as a bill of concern."

S.B. 162, co-authored by Sen. Daniel R. Martiny (R-District 10) and Sen. Karen Carter Peterson (D-District 5), would allow prior acts of domestic abuse and sexual assault against any person and acts of sexual offenses involving a juvenile under age 17 to be admissible in civil cases.

Alexander, a supervising and life-without-parole attorney with the Calcasieu Public Defenders Office, also is co-chair of the LACDL's Amicus Committee and chair of the LACDL's Legislative Committee's Trial Procedure Subcommittee for this season. SB 162 has been delegated to that subcommittee, Alexander said.

"Our original position was 'Oppose'," Alexander said. "But we changed that position to 'Monitor' as a result of Sen. Dan Martiny's amendment in Senate Judiciary Committee A on April 5 to remove the criminal aspect of that bill."

On March 23, Alexander and other LACDL members were at the meeting of the House Administration of Criminal Justice Committee where they saw legislation similar to SB. 162, HB 590, taken up, debated and reported favorably.

"We did not speak or turn in a card of opposition against HB 590 only because we look at a large number of bills, and some that should concern us will slip through the cracks and not be on our radar," Alexander said. "So it was with HB 590, which we have since heard referred to as 'the DAs' bill,' which it turns out it is."

Not taking a position on HB 590 was a lost opportunity, Alexander said.

"Had we been cognizant of that bill, we would have opposed it from the start," he said. "Because, in the words of one of the proponents of these bills, it tries to 'get rid of (Louisiana Code of Evidence Article) 404 B.' Our position is that one cannot 'get rid of 404 B' because the general inadmissibility of evidence of 'other crimes, wrongs, or acts' is predicated on federal constitutional law, that it is a Due Process violation simply to introduce evidence of past wrongful acts of an accused person except for two exceptions that make it fair."

There are a number of similarities between HB 590 and SB 162. Alexander said.

"Both bills pay lip service to another rule of inadmissibility that is discretionary to the judge, where they say 'subject to the balancing test provided in Article 403'," he said. "That article allows the judge, on motion of a party, to exclude evidence that the judge agrees is more prejudicial toward the accused than it is probative of any fact the state must establish as an element of the crime charged."

The LACDL would feel better about both bills if certain changes were made, Alexander said.

"Our objections, for the most part, could be removed if the bills also included the language 'and subject to the general rule and exceptions provided in Article 404 B'," he said. "That is exactly what they don't want to do. They want to get rid of 404 B, which is based on Federal Rule of Evidence 404 (b), which in turn is based on federal constitutional Due Process doctrine developed over many years by the United States Supreme Court to ensure fairness to the accused. You can't 'get rid' of a constitutional requirement by enacting legislation."

Doing so most certainly would be challenged in court, Alexander said.

"The result of passing new legislation that seems to derogate from 404 B will be constitutional litigation in cases where the state attempts to introduce evidence on the basis of such legislation that the constitutional general prohibition on 'other crimes evidence' would not normally allow," he said. "Unfortunately, many legislators will reason to themselves that litigation over their legislation is a problem for the courts later, whereas they want to please an influential constituency that wants a bill passed now."

Alexander said he testified as much before the Senate Judiciary A Committee on April 5, included in video of a hearing, in which SB 162 is taken up at about 1:15:46.

"I was there to speak against," he said. "I speak right after 1:30:45 on the counter, for informational purposes mainly, since LACDL's objection to SB 162 was eliminated by Sen. Martiny's amendment. Coincidentally, Iberia Parish Assistant District Attorney Robert Odinet joins me at the table for the Louisiana District Attorneys Association (LDAA) who also initially opposed, but whose opposition was likewise removed by SB 162 being amended by Sen. Martiny to remove the criminal portion. LDAA's reason for opposing SB 162 in its original form was completely different from ours, however. They are behind HB 590, and considered SB 162's portion duplicating that as stepping on their effort. Our position is that it is the DAs' bill HB 590, that concerns us the most."

About a month after the testimony, on May 11 the Senate voted unanimously, with 38 yeas and 0 nays, to pass SB 162. Sen. Ryan Gatti (R - District 36) was absent from the Senate vote.

If the bill passes a House vote unchanged, it would have to be signed by the governor before it would become law.

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